A British Columbia mother has launched a constitutional challenge to the provisions of the Divorce Act, Family Law Act, and Child Support Guidelines dealing with child support.
Claimant M.K. brought forward the legal theory that children have a constitutional right to receive child support from both parents from the date of the child’s birth. She argued that legislation that permits parents to avoid this responsibility infringes a child’s right to support.
The substance of her claim arose from her unsuccessful efforts to obtain a court order for retroactive child support for her 18-year-old son. She had raised her son on her own. It was only in 2013 that her son connected with his father on social media, resulting in her first court application.
In 2015 M. K. obtained an order from the Provincial Court for retroactive child support for her son, from the date of his birth. The Respondent appealed that order to the British Columbia Supreme Court, who substantially reduced the period of retroactivity to the date her application was commenced.
M.K.’s appeal to the B.C. Court of Appeal failed, as did her leave application to the Supreme Court of Canada. The sum total of her efforts brought her only $11,000 in child support, with court costs awarded against her of $13,000.
In September 2017 she filed a Notice of Civil Claim against the Attorney General of B.C. challenging provisions of the Divorce Act, the Family Law Act, and the Child Support Guidelines, alleging that to the extent the law did not provide for child support commencing from a child’s birth, the provisions were contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
In February 2019 the Attorney General brought an application to strike her Notice of Civil Claim arguing that it constituted a collateral attack on the earlier Supreme Court order and was an abuse of process. The AG also argued that M.K. had neither private nor public standing to maintain her claim. The British Columbia Supreme Court agreed with the Attorney General, pointing out that the time to bring her Charter challenge was in the initial child support court action. M.K. v. British Columbia (Attorney General) 2019 BCSC 166
After filing an appeal, her next step was to apply to the B. C. Court of Appeal for an order that she not be required to pay court fees based on undue hardship. The Court considered her financial circumstances and agreed that her tight financial situation brought her within the test for a waiver of fees. Next the Court considered whether her appeal was of sufficient merit to warrant ordering a waiver of fees.
Mr. Justice Hunter remarked that her appeal would be challenging as she needed to overcome the standing issue and then face arguments that her claim was a collateral attack on previous decisions in the Court of Appeal and in the Supreme Court.
He stated:
“…. it seems to me highly unlikely that she will succeed in overcoming these hurdles. However, I am reluctant to conclude that the appeal is bound to fail. In my view, that concept, for purposes of an order waiving fees that would impose undue hardship on an appellant, must be considered in the context of access to the court that was explained by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59”
Accordingly, the Court granted her application and waived the applicable fees.
M.K. v. British Columbia (Attorney General) 2019 BCCA 161.
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